CHAPTER 12
RELIGION IN THE PUBLIC SQUARE?
The Case of Criminal Justice
RELIGION IN THE PUBLIC SQUARE
The subjects in this volume repeatedly converge with religious expression in the public sphere. Political leaders periodically invoke scripture to support their ethics and policy positions. American exceptionalism permeates political speech. Anti-Muslim bias, embedded in media and public campaigns, reveals the ongoing exercise of religious othering. Violent conflicts are often molded around religious identity, even though they are generally embedded in competition for power and resources. Certainly, the dangers illuminated in this volume have maximal impact in the ways that religious ideas shape social realities. Given these intersections, the tools of self-critical faith have the potential to improve religion in the public square. Nuanced conceptions of scriptural truth can chasten the moral certainty used to excuse hateful religious speech and discriminatory policies. If chosenness, in its secular and religious forms, includes the commitment to make space for difference, to identify with the suffering of humanity, and to affirm every person’s innate capacity for moral reasoning—taught as real possibilities within the Abrahamic traditions—then it can help the body politic better support its diverse members.
Since harmful versions of these ideas never disappear, however, it might be better to keep religious influence at bay. Perhaps public theology is just a bad idea. I was raised in the tradition of John Rawls, believing that we should utilize “public reason” rather than religious beliefs in arguing a policy position. The rules that regulate our common life should be based on arguments to which we all have equal access, framed so that diverse people might reasonably be expected to agree.1 As a religious minority, I am grateful for the continuing disestablishment of Protestantism, concerned that legally privileged religious voices impinge on the liberty of others. Yet I am also appreciative that religious perspectives have been brought to bear on issues of social justice, from abolition to civil rights, and were instrumental in changing the system in critical ways. While most white people did not support civil rights agitation during the 1950s and early 1960s, and many of those with strong religious identity lived in the segregationist South, Dr. King’s spiritual rhetoric helped catalyze the transformation of our public conscience.
For much of my life, progressives seemed to cede the public religious voice to illiberal perspectives, to people who were making religious ideas ever more dangerous. It was not for lack of religious conviction, but rather for liberal commitment to pluralism and Rawlsian public reason. It gave the erroneous impressions that political liberalism was hostile to religion, that religious voices were being pushed out of public debate, and that “religious” increasingly meant “conservative.” Urging progressives to reclaim public religious discourse and “tap into the moral underpinnings of the nation,” President Obama (then a senator) declared, “When we discuss religion only in the negative sense of where or how it should not be practiced, rather than in the positive sense of what it tells us about our obligations toward one another . . . others will fill the vacuum, those with the most insular views of faith, or those who cynically use religion to justify partisan ends.” He went on to assert in Rawlsian style, however, that democracy requires religiously motivated individuals to translate their convictions into universal values, “accessible to people of all faiths, including those with no faith at all.”2
I am sympathetic to both dimensions of his argument. It is unwise to relinquish the public voice of religion to people who use it to deny individuals access to public services, reject climate science, legislate bias, and limit our responsibilities to support the disadvantaged. Yet the separation of religion and state serves a vital role in preserving American democracy, and also creates broad space for spirituality in all its polymorphous beauty to flourish. Roger Williams, James Madison, and Alexis de Tocqueville all understood that keeping religion out of state affairs—and government control out of religion—fosters the vitality of religious life.3 It still allows people to vote for religious reasons, and officials to act for religious reasons. It is not true that “religious citizens are forced to split off vital components of their personalities,” as Stephen Carter argued.4 Wilfred McClay’s complaint that religious expression “has been pushed to the margins, to a sort of cultural red-light district, along with other unfortunate frailties and vices to which we are liable” is disingenuous.5 The controversy is how we talk about, enshrine, and embody religious values in our collective public life.
Ultimately, I advocate a “conversation” model in public discourse rather than one of strict separation—a conversation in which religious ideas are critically engaged. Danièle Hervieu-Léger’s understanding of secularism is important here: it is not a process of eradication of religion from the public square or from society in general, but “one of re-composition of the religious within a broader distribution of beliefs in a society within which no institution can lay claim to a monopoly of meaning.”6 Individuals and communities are encouraged to share their religious perspectives on public policy, but without expectation that they operate as a trump card. They may claim to speak from a tradition, but not to speak exclusively for it, since it is evident that people interpret the same spiritual inheritance in diverse ways. They may present teachings that shape their values as people of faith, but they function in public space as ideas rather than religious truths. In the “conversation,” such teachings provide inspiration, not authority; motivation, not warrant.7 Protected but not privileged speech, religious discourse can also be challenged when put forward in public discussion, as we collectively examine every side of critical issues in our body politic and try to discern the path forward. Presenting a religious reason for one’s public policy position should not stifle debate.
John Rawls asked, “How is it possible that there may exist over time a stable and just society of free and equal citizens profoundly divided by reasonable though incompatible religious, philosophical and moral doctrines?”8 My answer is: with substantive and civil conversation that seeks to have all our sources of value interrogate and augment one another. This should not be surprising, since I have gone to great lengths to collect a multiplicity of religious voices, highlighting their provisional nature and self-critical capacities. By identifying the dangers of religious ideas, I mean to improve them, not to disqualify them.
Nonetheless, I remain wary about how religion exerts its influence in the public square. People use religion for partisan advantage and politics for sectarian gains. Given the ongoing privilege that Christianity bears in the US context, the potential for abuse is clear. Its power has been deployed to erode women’s reproductive rights, discredit the teaching of science, and demonize Muslims. Recent government actions appear to define religious freedom as the freedom to discriminate, as when the Supreme Court authorized a baker to withhold services because he does not approve of same-sex marriage, and when Health and Human Services regulations allowed health care providers to deny treatment based on religious convictions.9 Even religious values I would support, such as nonviolence, seem fraught if given sway over political decisions.
Thus I am attracted to Robert Audi’s notion of theo-ethical equilibrium: “Where religious considerations appropriately bear on matters of public morality or of political choice, religious people have a prima facie obligation . . . to seek an equilibrium between those considerations and relevant secular standards of ethics and political responsibility.”10 It is not a matter of translation, à la Rawls. It requires balancing what their religion teaches with a plural understanding of the broader public good. It requires them to stand both inside and outside their lifestance to examine its impact. It requires self-critical faith and reclaiming the complexities of their traditions. This balancing act both defends against powerful religious voices legislating morality for everyone, and helps to construct a common civic virtue. But the incorporation of secular ethics and reasoning exists alongside religious discourse, not instead of it. It invites us to explore diverse religious teachings to discover if there is something we might learn. Sometimes the dangers of religious ideas are good—challenging the status quo and providing a lens to see the world a little differently. Airing in the public square can potentially advance self-critical faith and public policy at the same time.
As a test case, this chapter investigates yet another dangerous religious idea, reward and punishment. It has the familiar mix of destructive and constructive powers we saw in previous sections. Like the other concepts, it is deeply embedded in human nature even as religious expressions give it special resonance. Rather than provide an extensive historical review to highlight the dangers as in previous sections, however, this more condensed discussion emphasizes what religion might contribute to thinking about criminal justice in the United States. It draws from scripture and later tradition in Judaism, Christianity, and Islam in search of establishing equilibrium—a dynamic working balance between interdependent parts—with secular and religious conceptions of justice.
THE DANGERS OF REWARD AND PUNISHMENT
Religious ideas about justice generally begin on the divine plane. Faith in a God who cares about justice is fundamental in theistic traditions; the concept of reward and punishment as one means to effect it is deeply embedded in their scriptures and theologies. Although the concept was not born there, its articulation in sacred text lends an ultimacy that magnifies its significance. Torah’s portrayal of God as the one true judge promises abundant produce, peace, and procreation to an obedient community, as well as horrific suffering if the people stray significantly from the prescribed path (Lev. 26, Deut. 27–28, Exod. 23). Israel is instructed to create a parallel human system of justice, punishing measure for measure; its classic formulation is expressed in the law of talion: eye for eye, tooth for tooth, etc. (Exod. 21, Lev. 24, Deut. 19). In New Testament, individuals are punished by God either immediately, as with the deaths of Ananias and Sapphira when they withhold part of the sale price of property from the apostles (Acts 5), or more frequently in the eschatological future. Matthew 25, for instance, promises the kingdom of God to those who provide support for people in need, and age-long punishment (historically interpreted as everlasting) to those who do not. Qur’an attaches eternal consequences to divine judgment: well-watered gardens for those who obey Allah and eternal fire for those who do not, timelessly and forever (4:13–14).
The idea of reward and punishment may at times motivate goodness or deter wrongdoing, provide a sense of agency and enable people to discern meaning in suffering, or contribute to the construction of a just political order. Even if one rejects the underlying theology, the effort to ground history in a moral framework can be compelling. Consider President Lincoln’s moving second inaugural address, when he lamented of the Civil War: “If God wills that it continue until all the wealth piled by the bondsman’s two hundred and fifty years of unrequited toil shall be sunk, and until every drop of blood drawn with the lash shall be paid by another drawn with the sword . . ., the judgments of the Lord are true and righteous altogether” (Ps. 19:10, italics added).
Since most Americans today probably do not believe that God thrust the war upon the nation as retribution for the sin of slavery, it is strange that this speech so captures the imagination. Is it simply the elegant rhetoric? Do we embrace it as the poetic justice sometimes revealed in historical rhythms of the universe? I believe that Lincoln’s address is persuasive because it explains us to ourselves; reward and punishment is fundamental to how we learn. The Civil War helped reorganize Americans’ moral and political understanding of slavery.11 It catalyzed a slow, painful process of reeducating our sensibilities—still being worked out in public monuments and voting rights and policing and affirmative action and a host of other issues.
Yet the concept of reward and punishment is fraught with theological and historical problems. It often serves less as a theology than as a self-serving worldview, a truism brilliantly captured by the nursery rhyme: Little Jack Horner sat in the corner eating his Christmas pie. He stuck in his thumb, pulled out a plum and said, “What a good boy am I!” Although we rarely stop to reflect on its meaning, it reveals a common and problematic presumption of religious causality: Jack proclaims that some force has rewarded him for his goodness. Since he is sitting in the corner rather than at the table, it seems just as likely that he landed there because he was misbehaving, but that does not enter into his calculus. When people imagine they can discern God’s judgment in good fortune and disaster, it invites responses like Jack’s—interpreting events to align with their own biases. Such perils were on display in the profane pointing of fingers after 9/11, Hurricane Katrina, and the earthquake in Haiti. Religious figures blamed the victims for these disasters, or insisted that efforts by gays, feminists, and others to claim equal rights had lifted God’s veil of protection from the United States.12 Their blasphemy epitomized everything that is wrong with religion in the public square.
Danger is also evident when people who are diagnosed with terminal illness, women who are abused by their husbands, or friends and neighbors suddenly struck by tragedy presume they have done something wrong, and that God authorizes the wounds inflicted upon them. While the theology that drives their conclusions may help them find meaning in their experience and to identify a course of action, it ultimately perpetuates the potential for cruelty or suffering to be divinely justified. Not all experiences of hardship come as payment due. Even the reward side of the equation has problems. The danger of self-satisfaction in material or social success is exacerbated when it is interpreted as a sign of divine favor, and it creates an excuse to judge others who are not similarly “blessed.” Prosperity gospel in the United States has proven itself to be prone to such abuse.13
Religious discourse has at times rationalized social and economic inequalities as somehow deserved, making it far too easy to do far too little about poverty and discrimination. Russell Conwell’s Acres of Diamonds, for example, asserted that we should not give charity because God made people poor for a reason: “I sympathize with the poor, but the number of poor to be sympathized with are very small. To sympathize with a man whom God has punished for a reason, thus to help him when God would still continue a just punishment, is to do wrong.”14 Conwell made so much money from publication of this tract and related speeches that he founded Temple University with the proceeds.
The concept of reward and punishment, however, is not exclusively or primarily religious. Driving along the highway once, I saw a billboard: “Don’t make Me come down there”—God. I laughed so hard I almost had to pull off the road. Even though I do not believe in a God who works that way, it evoked the familiar parental threat, part of our basic training in right and wrong. In his work on education, John Locke wrote, “Good and evil, reward and punishment, are the only motives to a rational creature; these are the spur and reins whereby all mankind are set on work, and guided.”15 Hopefully he overstated the case, but we are hardwired to think this way. We love to see “bad guys” get what we think they deserve, an appetite whetted far more by Hollywood than holy texts as contemporary films continually feed our craving for punishment. Evolutionary biologists explain how ideas of reward and punishment are embedded in our DNA, how their ancient tribal forms ensured survival of the group. Sociologists declare that retributive justice is integral to how we developed human community and will always be a fundamental part of our law codes.
Shifting our critique from theology to jurisprudence, it is evident that a system built almost entirely on retributive justice remains deeply problematic. The law and order drive of the 1970s marked the end of a century of penal reform that had focused on the rights and reformability of offenders.16 Today, America’s racially unbalanced retributive justice system has created a massive prison–industrial complex with the highest incarceration and recidivism rates in the world.17 The economic and social legacy of a nation that claims 5 percent of the global population but 25 percent of the world’s prisoners is deeply compromised. In The New Jim Crow, Michelle Alexander made a compelling case that our criminal justice system serves as a “stunningly comprehensive and well-disguised system of racialized social control” designed to continue disenfranchising African Americans.18 It is a specific and scandalous iteration of Michel Foucault’s insight that reward and punishment works to perpetuate dominant forces of social, economic, and political power, inside and outside the criminal justice system.19
Several authors have theorized that the United States’ penchant for punishment grows all too naturally from Christian teaching of a brutal God, a theology of sin that deems all of humanity unworthy save for divine grace, and an emphasis on personal salvation rather than communal redemption.20 According to this perspective, Christian influence renders criminals deserving of suffering, human character incapable of reform, and the justice system blind to social ills. Given how intrinsic reward and punishment is to human psyche and society, however, it seems unlikely that the US penal code is a direct result of scriptural teaching or theology. As with other dangerous religious ideas, the religious aspect provides spiritual support for social, political, and legislative agendas. People quote “an eye for an eye” (even though most consider it barbaric in its literal sense—except, incongruously, the life for life part) because it justifies the human thirst for vengeance. They quote it, even if they do not thump the Bible very often or know it very well, because the scriptural reference seems to ground our instincts in a moral framework. Yet the idea of reward and punishment is not all that religious traditions have to say about justice, human or divine; its place in religious discourse has been magnified by its prominence in contemporary culture. A thicker reading of the scriptures and religious teachings yields a far more supple, sophisticated conception of justice that has potential implications for public theology, political discourse, and the criminal justice system.
RESTORING THE FULLNESS OF RELIGIOUS TEACHING ON JUSTICE
Four of the most prominent approaches to justice today—retributive, restorative, distributive, and procedural—are all addressed creatively and substantively in scriptural texts and later tradition.
Retributive justice focuses on punishment as a response to violation. The offender violated the law and must pay. It bestows “satisfaction” on the aggrieved party and is assigned a deterrent effect. It can also incapacitate perpetrators so that they cannot do it again.
Restorative justice emphasizes repairing damage, restitution, taking responsibility, rehabilitation, and restoring relationships. It is also committed to satisfaction, but differs from retributive justice in its strategies for righting the balance.21
Procedural justice aims for equality in the processes of decision-making, including but not limited to the adjudication of sin or crime.
Distributive justice sets as its goal the equitable distribution of resources to all members of society, even if the means for doing so contradict some aspects of equal treatment under the law.
Political discourse in the United States tends to treat these as pairs of binary choices. People support either retributive or restorative methods of justice. They measure fairness by either procedural or distributive means. Our religious sources do not. They expect that all these forms of justice are required in dynamic relationship.
A quick peek in a dictionary reveals the inadequacy of basic conceptions about justice. Merriam-Webster’s primary definition is “the maintenance or administration of what is just, especially by the impartial adjustment of conflicting claims or the assignment of merited rewards or punishments.” Its simplified definition for English-language learners is even starker: “the process or result of using laws to fairly judge and punish crimes and criminals.”22 Contrary to this narrow focus, Judaism, Christianity, and Islam recognize that criminal justice unfolds within systems of economic and other forms of justice, that the state cannot fully represent the whole of the project, and that the social weal depends on restoration as well as punishment. Excavating the robust religious synthesis of approaches to justice, we can clarify our ethical commitments and reexamine whether our current policies achieve them.
Fundamentals of procedural justice are established through Torah instructions, including equal justice, direct justice, proportional response, and fairness in adjudication. Citizen and stranger, rich and poor, all are to be treated equally (Exod. 23). Yet distributive justice is also legislated: portions of one’s field and a tithe are set aside for the poor; there are special protections for the widow, orphan, and stranger (Exod. 22, Lev. 19, Deut. 24, 26); debts are released in the sabbatical year (Deut. 15); and a redistribution of wealth is commanded in the jubilee so that society does not allow the growth of a perpetual underclass (Lev. 25).23
Reflections on justice also appear in narrative, including the story of Sodom and Gomorrah in Genesis 18–19. At first, it appears to be a tale of God’s retribution, destroying the cities for their sinfulness. Warned of the impending disaster, however, Abraham challenges the God of justice to do justly, and the equation shifts from one of collective punishment to one in which a whole city might be spared because of a righteous few. The fact that this agreement is reached in a call for “justice” rather than mercy is remarkable. Lot’s wife and daughters pay steep prices for the social violence that envelops them (as women frequently do) and destruction does ultimately befall the cities, but the introduction to the narrative contains an important message for human constructions of justice. God feels obliged to consult Abraham: “for I have singled him out, that he may instruct his children and his household after him to keep the way of the Lord by doing righteousness and judgment” (Gen. 18:19). Jewish interpretation discerned two distinct and equally essential approaches to justice in the final phrase, distributive and retributive. A law-governed society is a place of mishpat (judgment); societies need the rule of law to survive. But law cannot alone create a good society. It must have tzedakah (righteousness), a Hebrew root that has become so linked to the redistribution of resources that can make for justice, it often gets translated as “charity.”24 This word pair—tzedakah umishpat—is Hebrew Bible’s expression for social justice.25 If there is no equitable distribution of resources, if people are driven to steal by abject poverty or lack of opportunity, the law cannot effect justice.
There is “an eye for an eye,” but there is also restorative justice. Theft, robbery, and fraud, for instance, require return of the stolen object, an additional payment to the victim, and a process of atonement and forgiveness (Lev. 5:20–26).26 The teaching of reproof (Lev. 19:17) is understood to require that we address the one who has wronged us, hold that person accountable, and repair the breach.27 Covenant withstands violation and develops mechanisms for reestablishing right relationship. Pervasive in Hebrew Bible, it is the organizing principle of the polity and becomes the foundation of justice with its mutual obligations and profoundly restorative dimensions. Covenantal bonds are not mere contracts, but dynamic relationships that embody ḥesed (a kindness greater than one has a “right” to claim) and set shalom as their goal.28
Rabbinic tradition expanded on these restorative foundations: it insisted on the importance of repentance and the reformability of human character, it identified reconciliation between individuals as central to legal redress, and it affirmed the ultimate goal of repairing the community.29 As mentioned in chapter 2, the Mishnah translated “eye for an eye” into a system of restorative justice: One is liable to compensate the injured party for pain, for time lost from work, for medical expenses, for any permanent loss in earning potential, and for emotional suffering (m. B. Qam. 8:1). This rabbinic text, redacted in the second century but evidently recounting law that was already in force in the Jewish community, was then buttressed by the Talmud, which justified the principle through creative and engaging exegesis. It reimagined the biblical teaching of lex talionis by applying procedural requirements. Since there must be equal justice, for instance, the case of a one-eyed attacker presents a problem. Physical retaliation would make the assailant blind, but the original victim would still be able to see. That is not equal justice! It is also possible that the assailant might die as a result of the operation, resulting in “life and eye for eye,” a clear violation of proportional response. Taking the argument to the point of absurdity to demonstrate that retributive justice cannot fulfill the underlying values of Torah, the Talmud inquired: Can it be equal justice if a small man kills a large one? Is the “smaller” penalty sufficient when he forfeits his life? (b. B. Qam. 83b–84a).30 Still, rabbinic interpretation grasped how scripture’s diverse modalities of justice are inextricably linked. The sages expressed an abiding commitment to the value of reward and punishment and the ideal of measure for measure.31 They were unwilling to give up the idea of a God committed to justice or to deny our need to make moral sense of human experience.
Rabbinic tradition also deliberated on the ethics of distributive justice. In t. Bava Metzi’a 11:33–37 (Lieberman), for instance, the sages discussed the case of a wellspring that flows through a city. The majority asserted that residents of that city have first claim on the water, even if those downstream suffer as a result. People who live downstream, however, have priority over the animals of the city, and over household tasks such as laundry. Rabbi Yosi maintained in each instance that the needs of the city take precedence. Later layers of rabbinic literature relate the story of a student who struggled mightily to understand what logic or scriptural support could justify these conclusions. In the Babylonian Talmud, the student’s incredulity stemmed from Rabbi Yosi’s claim that city residents could do their laundry before providing essential drinking water to others (b. Ned. 81a). In the Jerusalem Talmud, however, the student found an ethical conundrum simply in the determination that the lives of the city’s residents take precedence over those who are outside (y. Shev. 8:5). Given the American context in which property rights are so deeply ingrained in our culture that the ethics of water policies are barely debated, this open-ended deliberation is striking. With the dialectical reasoning so central to Talmudic thought, Oral Torah advances Tanakh’s multiperspectival vision of justice.
Parables in the New Testament also productively complicate our thinking about justice. In Matthew 20:1–16, the kingdom of heaven is compared to a landowner who pays his day-laborers the same amount, no matter what time of day they were hired. When the workers who were hired first complained that they should be paid more, the landowner replies, “Friend, I am doing you no wrong; did you not agree with me for the usual daily wage? . . . Are you envious because I am generous?” Recognizing the human tendency to resist distributive justice as unfair, the text suggests a higher order of justice where everyone receives what they need. The story of the prodigal son (Luke 15:11–32) has a different reason for “unfair” allocation of favor. The father is so overjoyed to have his lost son return to him that he gives him fine clothes and celebrates with a great feast. The tale recognizes the pain of the son who remained at home, faithfully serving his father while his brother squandered a share of the family wealth in faraway lands. But it insists on the goal of restoration, of reintegrating the wayward child into the family and community. While these passages are frequently interpreted as kingdom parables, teaching about God’s eschatological justice that is overflowing with grace, the human casting illuminates interpersonal and social justice as well. The US Conference of Catholic Bishops, for instance, invoked the prodigal son in a letter on criminal justice to commend a more forgiving jurisprudence.32 The centrality of repentance in all three traditions keeps open a door that incarceration tends to shut.
There is another parable in Luke (10:25–37) that potentially illuminates restorative justice: the tale of the Good Samaritan. It is enshrined, at least in name, in American law. Good Samaritan regulations address what obligation we have to help a stranger in trouble, at what risk, and what protections we have if we try but something goes wrong. The parable, on the other hand, can be read as a victim-centered narrative that revolves around the value or lack thereof that attaches to the unnamed man who is assaulted by robbers. He is the first character and the only one who interacts with every other. In a book on restorative justice, Christopher Marshall demonstrated how such a reading aligns with the contemporary argument that the experience of the victim should not be effaced by the standing of the state in criminal proceedings.33 He also noted that the parable does not focus on the crime, but rather on people’s response to it.
Marshall’s broader analysis reflects a problem common to Christian exegesis of the passage, presuming that the Kohen (priest) and the Levite pass by without helping in order to preserve their ritual purity. The original Jewish audience of the parable would have known that these ostensible communal leaders had a legal obligation to save a life or tend to an unclaimed corpse regardless of purity concerns, and the listeners would recognize the story pattern: if there is a Kohen and a Levite, then the third character should be an Israelite. They would expect to learn that the Israelite did the right thing. Status does not make one holy; your actions do. By making the final figure a Samaritan instead, Jesus addresses the true crux of the tale: “Who is my neighbor?” (Luke 10:29) in the command to “love your neighbor as yourself” (Lev. 19:18).34 Since the Samaritans were often antagonists of the Jews in the Persian and Roman periods,35 Jesus challenges his listeners to accept that goodness may be found among those whom we expect intend us harm. This conviction has implications for the modern criminal justice system. It challenges our propensity to dehumanize people who break the law, seeing them only as criminals deserving of punishment. At the end of the passage Jesus instructs his interlocutor, “Go and do likewise” (10:37), pressing us all to expand our circle of concern. That concern surely includes the incarcerated, since many figures in Hebrew Bible and New Testament were arrested due to unjust systems, Joseph, Samson, Jeremiah, Daniel, John the Baptist, Peter, James, John, Silas, Paul, and Jesus included.
Efforts to humanize transgressors also appeared in teachings of the Church Fathers. Athanasius (296–373) spoke theologically of sin as sickness; Augustine applied the principle in a murder case to argue against the death penalty. He wrote to the judge, Marcellinus: “Fulfill, Christian judge, the duty of an affectionate father; let your indignation against their crimes be tempered by consideration of humanity; be not provoked by the atrocity of their sinful deeds to gratify the passion of revenge, but rather be moved by the wounds which these deeds have inflicted on their own souls to exercise a desire to heal them.”36
Lactantius (240-c. 320) undertook a systemic analysis of what justice requires, editing his Divine Institutes to address Constantine after the emperor’s conversion. Seeking to imbue the source of law in the empire with religious values, Lactantius wrote not only about personal Christian virtue (e.g., almsgiving, hospitality, care for the most vulnerable [book VI]), but also about foundational principles of social equity due to all people, created in the image of God (book V). It was “a manifesto for reform of the empire under the law of God,” an objective full of both danger and promise.37
The Church Fathers also built on New Testament teachings of distributive justice, where concern for the poor is manifest. When the church started to acquire political power, they moved from a focus on personal charity and storing up treasure in heaven38 to include broader notions of economic justice. Basil of Caesarea (330–79), for example, founded Basileias—a new city with a hospital, a residence for travelers and the poor, and treatment for lepers. He established training programs for able-bodied people living in poverty and businesses to give them work, extending these services to immigrants as well. “Basil repeatedly made the rhetorical point that wealth should come off the walls and up from the floors and out of the treasuries of rich men’s houses, in order to find its way back into philanthropic and productive circulation.”39
Qur’an and Muslim tradition also add compelling dimensions to thinking about justice. The Arabic term for justice, adl, draws from the root “to set something in its rightful place”—an image that conjures the mix of approaches we have been discussing. There is definitely a commitment to distributive justice, with the reallocation of resources through zakat established as one of the five pillars (2:277, 9:60), and enacted through fiqh.40 Texts also record efforts to ameliorate harsh juridical penalties, making the requirements for conviction quite stringent and expanding procedural exceptions. Muhammad reportedly ordered Muslim judges to ward off hudud punishments by probing ambiguities.41 The example of Umar cited in chapter 5, suspending hudud penalties for theft in a year of drought because scarcity drove people to steal, recognized exigency as one such ambiguity. There are also records of leniency in cases when the offenders confessed and repented, demonstrating a commitment to restorative justice.42
Several facets of Muslim juridical practice prompt particularly fruitful questions about criminal justice in the West. One is the involvement of the victims and their families in decision-making. Secular criminal law generally appoints the state in their stead, presuming that personal connection can only cloud the proceedings, but there are increasing challenges to this assumption. Susan Hascall wrote, “The restorative justice movement criticizes the lack of direct involvement by the community and the victims in sentencing and the modes of punishment utilized by criminal justice systems. More direct involvement by the stakeholders is thought to advance one of the goals of this movement, which is to humanize both the victims and the perpetrators of the crime.”43
Long development of Islamic jurisprudence throughout the Middle Ages provides an extensive written record of theory and practice, facilitating reflection on this issue. In Islamic law, victims and their families in most criminal cases can choose the default retributive punishment (kasas), or elect compensation, conciliation, or pardon. The alternative paths are considered preferable to retaliation, each option ranked higher than the one before. Inclusion of family members is designed to make people more accountable as they explain their positions to one another.44
These mechanisms and the idea of victim’s choice trace back to Qur’an: e.g., “The repayment of a bad action is one equivalent to it. But if someone pardons and puts things right, his reward is with Allah” (42:40). It presents a concept of measure for measure, but the goal is to put things right, something that can often be best accomplished through restorative justice. The sura continues: “If someone is steadfast and forgives, that is the most resolute course to follow” (42:44). The possibility of compensation also addresses retributive and restorative justice together as a pair: “Retribution is prescribed for you in the matter of the slain: freeman for freeman, slave for slave, female for female. But for one who receives any pardon from his brother, let it be observed honorably, and let the restitution (diya) be made to him with goodness. This is an alleviation from your Lord, and a mercy” (2:178).
Another useful facet of religious thinking about justice is its emphasis on mediation. The Medina Charter (622 CE) that Muhammad negotiated among the warring tribes in Yathrib was a real-world model, establishing constitutional processes for reconciliation.45 Various informal mediation customs emerged in the subcultures of the Muslim world,46 and medieval Jewish practice similarly encouraged conciliation. Maimonides wrote, “Every court that constantly effects mediation is to be praised, and it is of such a court that the verse says: ‘Render a judgment of peace in your gates’ (Zech 8:16). Which judgment contains peace? Surely it is mediation.”47
Conciliation (sulh) is mentioned thirteen times in Qur’an in small- and large-scale conflicts. When “two parties among the believers fall to fighting,” for example, the community is instructed to “make peace between them with justice and act equitably; truly God loves the just” (49:9).48 Subsequent discourse addressed how judges should encourage but not impose mediation, what cases might not be appropriate to refer, the appointment of an adjudicator (with a preference for one who knows both parties rather than an outside “objective” observer), types of actions and payments an offender might agree to provide, etc. According to Mutaz Qafisheh, “Given this general guidance, coupled with myriad conciliation cases undertaken through the history, Islamic jurisprudence has thoroughly elaborated on the question of conciliation between offenders and victims to settle criminal cases, for the purpose of restoring peace and love.”49
Feminist critiques warn that pursuit of forgiveness and reconciliation has at times been at women’s expense, used to sustain injustice and abuse.50 Across religious traditions and within secular society, prioritizing peace can certainly perpetuate existing power relationships and social realities. While reckoning with this concern, Islam’s approach emphasizes something our professionalized system often forgets: crime is at its core a violation of one person by another. Like contemporary thinking about restorative justice, it does not eliminate the role of the state or the involvement of credentialed experts, but it offers a counterweight.51
Spiritual communities contribute in ways that go beyond public discourse and analysis. Experiments in restorative justice processes, like peace circles, are frequently adapted from indigenous models. The Mennonite Central Committee was involved in establishing the Victim-Offender Reconciliation Project in the 1970s. It was an effort to reclaim humanity within the mechanisms of justice, and to emphasize outcomes over procedures.52 Today, religiously grounded reentry programs like Healing Communities USA and the Inner-City Muslim Action Network’s Green ReEntry project lead the field to help recently incarcerated individuals rebuild their lives on the outside. Such efforts reveal religion’s deep commitment to repentance, to faith in the mutability of human behavior or character, and to the importance of community in human flourishing, all as integral to the establishment of justice.
SELF-CRITICAL FAITH IN THE PUBLIC SQUARE
Expanded beyond “an eye for an eye,” it is evident that religious ideas and praxis can be a “good and dangerous” influence in thinking about justice. It is true in the various connotations of the phrase. “Good and . . .” serves as a colloquial modifier meaning “very.” Some religious ideas about justice are very perilous. Theocratic systems in the world today demonstrate that restoring the normative authority of ancient texts does not necessarily advance the cause of justice; often these governments distill religion’s harshest values, twisted to sustain various forms of social and economic power. Good and dangerous also suggests it can be both at the same time, an argument that has been central to this volume. Religious ideas about justice, like the issues discussed in previous sections, have positive and negative power. Lastly, good and dangerous can connote that they are dangerous in a good way, poking at assumptions, subverting oppressive structures, and provoking new ways of thinking about justice. Religion in the public square is still fraught, and religious ideas must be critically engaged. Without presuming to take the moral high ground, however, religious voices can offer their insight and experience in equilibrium with other sources of knowledge and value. They interrogate each other in pursuit of social repair.
Consequently, it is a valuable exercise to recover the broad range of religious teachings on justice in this age of mass incarceration, police violence, dehumanization, expanding wealth disparity, and other social inequities. The traditions do not furnish us with a ready-made set of policies. Instead, they point in a particular direction, one that in some ways is more holistic and humane than our modern system.53 The multifaceted, integrated approach to justice in Judaism, Christianity, and Islam presents fertile soil for cultivating anew our own moral and political understandings.
It goes beyond recognition that retributive, restorative, procedural, and distributive justice are interdependent foundations rather than partisan divides. The complex relationship of personal, penal, and social justice in religious teachings prompts a deeper dive into the sea of intersectional justice issues. Connections between economic and criminal justice, for example, are rampant. It is not simply that economic opportunity and provision for everyone’s basic needs are part of a justice “system.” It is not simply that poverty and lack of opportunity can foster criminal behavior—although distributive injustice is central to the problem. Consider the depiction of justice as a blindfolded goddess holding a balance: it emphasizes equality in procedures rather than equity in circumstances—and even so, she is not as impartial as we might hope. Poor people and people of color consistently fare worse. By ignoring social, economic, racial, and political differences, inequities are multiplied.54 The incarceration life cycle is a prime example; from bail to parole, the system disadvantages people of limited means.
Money is bound up with criminal justice in other ways as well. Agencies funded by civil forfeiture and the increasingly privatized prison-industrial complex, with an economic stake in locking people up, are driving unjust policies. Even the growing consensus regarding certain measures of criminal justice reform has an economic motivation: governments are reckoning with the enormous financial burden of housing over two million people in county jails and state and federal prisons: $80 billion a year that is surely needed elsewhere. Criminal justice cannot be achieved without attention to economic and social justice.
The religious traditions also contribute their capacities for self-critique, including explicit warnings about the ways people judge one another. Qur’an often speaks of Allah as the one who will judge between peoples (2:113, 7:87; see chapter 5), and deferring judgment (irja) became a principle within Islamic law. In wisdom literature within Tanakh, presumably orthodox ideas about reward and punishment are problematized, especially in the book of Job. It announces at the outset that Job is “blameless and upright,” yet he suffers tremendously. As his troubles multiply, his friends come to sit with him in the dust for a long time before they even speak, and then they begin rather gently when engaging Job to explore the meaning of his experience. Eventually, however, they blame the victim in increasingly vociferous tones, inventing all sorts of wickedness he must have committed to fit the measure of his pain. They come to care more about justifying God than showing compassion for the afflicted and, in the text, God condemns them for it.
Paul’s epistles also wrestle with the human propensity to judge each another harshly. His theology conveys clear expectations of divine reward and punishment, but he assails those who would arrogate unto themselves the powers of God’s judgment (Rom. 2), suggesting he would have chastised those religious leaders who assigned guilt for recent natural disasters. Other texts (e.g., 1 Thess. 2:14–16) demonstrate that this constraint was sometimes observed in the breach, but presentations of Jesus have him repeatedly demur from the role of judge. In John 8, he reportedly tries to ignore the “teachers of the law” who bring forward an adulteress to test whether he will affirm Torah’s prescribed punishment. When they press the issue, he eventually responds that the one without sin should cast the first stone—and she is spared. Bryan Stevenson, in Just Mercy, said we should go a step further and become “stone-catchers,” shielding the marginalized from societal condemnation.55
Judaism, Christianity, and Islam—shaped over centuries and revealing diverse contexts, perspectives, and agendas—present contradictions and dialectical tensions that serve as catalysts for critical self-reflection. Simply recognizing the absurd reduction of religious teaching to “an eye for an eye” forces a reckoning with our human instinct for vengeance and the way it shapes our criminal justice system. It presses for a realignment of priorities and expansion of the public imagination when it comes to justice. Critically engaged public theology, then, is not only a defense against those who would arrogate the power of religious ideas to do harm. For all the hazards of religion in the public square, there is a good and dangerous role to play.